Free Speech Guarantees

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There has been recent discussion – both local and national – regarding the use of libel and slander lawsuits to intimidate or punish those who dare to criticize public officials. Libel is the communication of a false statement that harms a reputation through printed words or images. Slander is the spoken communication of a false statement that harms a reputation.

A fundamental principle of our system of government under the U.S. Constitution is that the opportunity for free political discussion must be maintained so that government may be responsive to the will of the people and that changes may be obtained by lawful means. We have a profound national commitment to debate on public issues that is uninhibited, robust, and wide-open – debate that may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. So, how is this fundamental principle of vigorous public issues debate maintained within the context of possibly harming the reputation of a public official with a false statement? The answer to this question is included in the landmark United States Supreme Court case New York Times Co. v. Sullivan, 376 U.S. 254 (1964): see https://supreme.justia.com/cases/federal/us/376/254/case.html and https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan.

The U.S. Supreme Court ruled, “A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves ‘actual malice’ – that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.” “Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless ‘actual malice’ – knowledge that statements are false or in reckless disregard of the truth -- is alleged and proved.”

The actual malice standard requires that a public official plaintiff in a libel or slander case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty of proving the defendant's knowledge and intentions, such claims by public officials rarely prevail. Therefore, concerned citizens do not need to be fearful about criticizing public officials and then being successfully sued by the public officials for libel and slander – as long as the criticism is free of actual malice. It is also noteworthy that Indiana has enacted statutory protections against strategic lawsuits against public participation (SLAPP): see https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation.

A SLAPP lawsuit is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. The Indiana Code sections listed next have essentially made SLAPP lawsuits by public officials illegal in Indiana by awarding attorney's fees and costs to concerned citizen defendants on the grounds that they impede freedom of speech.

IC 34-7-7
    Chapter 7. Defense in Civil Actions Against Persons Who Act in Furtherance of the Person's Right of Petition or Free Speech Under the Constitution of the United States or the Constitution of the State of Indiana in Connection With a Public Issue

IC 34-7-7-5
Conditions under which rights of petition or free speech may be used as defense
    Sec. 5. It is a defense in a civil action against a person that the act or omission complained of is:
        (1) an act or omission of that person in furtherance of the person's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue; and
        (2) an act or omission taken in good faith and with a reasonable basis in law and fact.

IC 34-7-7-6
Discovery; stay pending motion to dismiss
    Sec. 6. All discovery proceedings in the action are stayed upon the filing of a motion to dismiss made under this chapter, except for discovery relevant to the motion.

IC 34-7-7-7
Costs and attorney's fees; defendant successful in motion to dismiss
    Sec. 7. A prevailing defendant on a motion to dismiss made under this chapter is entitled to recover reasonable attorney's fees and costs.

In summary, concerned Boone County citizens who criticize their public servants do not need to fear (1) being successfully sued by public officials for libel and slander and (2) having to bear the cost of a legal defense against a lawsuit filed by a public official alleging libel or slander. Thin-skinned public officials who want to stifle public criticism will need to resort to tactics other than the threat of libel and slander lawsuits.

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This page was last updated on 03/28/17.